Many anticipated that Bond v. United States (2014) would confirm or overrule Justice Holmes’s canonical decision in Missouri v. Holland (1920). Bond is now considered to have done neither; rather, it purportedly elided the constitutional issue by applying the canon of constitutional avoidance to the treaty’s implementing legislation, thus resolving Bond on statutory grounds alone and leaving Holland’s validity for another day. We argue to the contrary that Bond eviscerated Holland. Chief Justice Roberts proceeded from the premise that “the statute — unlike the [treaty] — must be read consistent with principles of federalism inherent in our constitutional structure.” This premise, upon which the core of the Court’s subsequent analysis relied, is not, as the orthodox reading suggests, a mere clear-statement rule. By its terms, it is mandatory rather than precatory; and it cannot be reconciled with Holland. It abjures Holland’s holding that a treaty and its implementing legislation must be evaluated together and that, under the Tenth Amendment, the validity of the latter depends upon the constitutionality in this regard of the treaty itself. Further, the federalism-based canon of constitutional avoidance and the background principle on which the Court relied both tacitly, but necessarily, presupposed that Holland is no longer good law. Holland nonetheless continues to represent the most sensible and defensible reconciliation of the tension between the Treaty Clause and the Tenth Amendment. By abandoning Holland, the Court has interpreted the Constitution as disabling the nation from honoring international obligations of the sort at issue in Medellín v. Texas — in which the Court held that the federal government can do what Bond now holds it cannot. Bond took a lamentable step backwards for the United States, recreating one of the paramount problems that beset the nation under the Articles of Confederation.

My take on Bond is here. I sort of agree with this paper and sort of don't. On one hand, I agree that there is a structural problem with allowing the U.S. to enter into treaties which it can't enforce domestically. (Although, that problem can be solved with a self-executing treaty, which makes this issue less important than internationalist writers seem to think it is). I think it's right that the implementing power should go to the full extent of the treatymaking power, and that Bond, to the extent it suggests otherwise, is mistaken. On the other hand, as I argue in my paper, I think federalism implies two interpretive guidelines in evaluating both treaties and their implementing legislation. One of those is that the treaty should not be read to override federalism values if it is ambiguous. So while I agree that the treaty and the implementing legislation should be read in parallel, I conclude from this proposition not that federalism should be ignored in interpreting the implementing legislation, but that it should be used in interpreting the treaty.

Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary — what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an appeal to “historical gloss”— a claim that the practice informs the content of constitutional law. Second, historical practice might be invoked to support what Commonwealth theorists have termed “constitutional conventions.” To illustrate how both gloss and conventions enrich our understanding of the judicial separation of powers, the Article considers the authority of Congress to “pack” the Supreme Court, and the authority of Congress to “strip” the Court’s appellate jurisdiction. This Article shows that, although the defeat of Franklin Roosevelt’s Court-packing plan in 1937 has been studied almost exclusively from a political perspective, many criticisms of the plan involved claims about historical gloss; other criticisms involved appeals to non-legal but obligatory constitutional conventions; and still others blurred the line between those two categories or shifted back and forth between them. Strikingly similar themes emerge in debates in Congress in 1957-58, and within the Justice Department in the early 1980s, over the authority of Congress to prevent the Court from deciding constitutional issues by restricting its appellate jurisdiction. The Article also shows, based on internal executive branch documents that have not previously been discovered or discussed in the literature, how Chief Justice John Roberts, while working in the Justice Department and debating Office of Legal Counsel head Theodore Olson, failed to persuade Attorney General William French Smith that Congress has broad authority to strip the Court’s appellate jurisdiction. The Article then reflects on the implications of gloss and conventions for the judicial separation of powers more generally.

01/29/2016

This Article recovers a lost chapter of constitutional history — the ill-fated challenge to Ruth Bryan Owen’s congressional eligibility. Owen was the brilliant (and American-born) daughter of famed politician William Jennings Bryan, and a pioneering figure in her own right. But the Expatriation Act of 1907 stripped Owen of her American citizenship when she took a British husband. Congress swiftly repealed this loathsome feature after the Nineteenth Amendment’s ratification. Yet Owen’s defeated opponent claimed that she hadn’t “been seven Years a Citizen of the United States” as the Constitution requires. Because Owen had been a naturalized citizen for only three years at the time of her 1928 election, the House faced an unenviable adjudicative dilemma: does “seven Years” mean the immediately preceding seven years, or any seven years cumulatively?

Owen’s case demonstrates that the perceived clarity of even “mathematical” constitutional provisions can be shaped by purposive and pragmatic considerations extraneous to the text, considerations that often change in light of freshly received facts. This Article also presents powerful new evidence that women came to be seen as improper objects of state-sanctioned discrimination soon after the Nineteenth Amendment’s ratification. Owen’s triumph marks an important turning point in American women’s effort to achieve full constitutional equality. Because scholars have forgotten her story, they have overlooked crucial sources that might have helped provide a historically firmer basis for modern sex-discrimination doctrine. And as Owen’s case shows, historical practices repugnant to the modern constitutional order should never be accorded residual legal effect. This Article accordingly criticizes the Supreme Court’s plurality opinion in Kerry v. Din (2015) for citing the Expatriation Act to downplay an asserted liberty interest’s historical pedigree under the Due Process Clause.

Via Larry Solum at Legal Theory Blog, who says "Wonderful and fascinating. Highly recommended. Download it while it's hot!" and adds a interesting extended discussion of the seven-year citizenship requirement.

My view, for what it's worth, is that the seven-year requirement means -- fairly clearly -- seven years immediately prior to being elected. Otherwise, what's the point of the requirement? It would be absurd to say that a person who was a U.S. citizen for seven years in the distant past (say, from birth to age seven), having become the citizen of another country and renounced U.S. citizenship, should nonetheless be eligible. Since the possible textual meanings are "seven years immediately prior" and "any seven years," and the latter is absurd, the former is the answer.

Note: Daniel Rice is also the author of a great student note, as discussed here and here.

On June 30, four days after handing down the marriage decision, Obergefell v. Hodges, the court announced that it would hear a major challenge to the future of public-employee labor unions. That case, Friedrichs v. California Teachers Association, was argued last week. As was widely reported, the outcome appears foreordained: the court will vote 5 to 4 to overturn a precedent that for 39 years has permitted public-employee unions to charge nonmembers a “fair-share” fee representing the portion of union dues that go to representing all employees in collective bargaining and grievance proceedings. As the exclusive bargaining agent, a union has a legal duty to represent everyone in the unit, whether members or not; the fee addresses the problem of “free riders” and the resentment engendered by those who accept the union’s help while letting their fellow workers foot the bill.

...

I want to focus here, however, not on the implications the Friedrichs case holds for the public workplace, but on what it means for the Supreme Court. Actually, I couldn’t express my concern better than Justice Stephen G. Breyer did last week when he questioned Michael A. Carvin, the lawyer for the 10 California teachers who are challenging the state’s labor law. ...

“What is it, in your mind,” Justice Breyer asked Mr. Carvin, “that you can say from the point of view of this court’s role in this society in that if — of course, we can overrule a compromise that was worked out over 40 years and has lasted reasonably well …” The justice ruminated for a moment on his own practice of filing dissenting opinions, and then returned to his point: “You start overruling things, what happens to the country thinking of us as a kind of stability in a world that is tough because it changes a lot?”

But as Greenhouse surely knows, the Court overrules a case now and then. And I doubt she is so troubled in different circumstances. I don't remember that she expressed any concern when Lawrence v. Texas (with Justice Breyer in the majority) overruled Bowers v. Hardwick to find homosexual conduct protected by the Fourteenth Amendment. I would be surprised if she thought Mapp v. Ohio or West Coast Hotel v. Parrish were wrongly decided because they overruled prior cases (Wolf v. Colorado and Adkins v. Children's Hospital, respectively). If she really thinks any overruling amounts to a "putsch" she should be clear about the implications of that view. And if she thinks there's a difference between Friedrichs and the other cases (other than that she liked the outcome in those other cases), she should make the argument.

She concludes:

So what we have here are the majority’s policy preferences conveniently clad in First Amendment armor. But even the best armor is vulnerable, and as the court strides recklessly into a danger zone, I’m left with Justice Breyer’s question: What’s the country to think?

I suppose the country is to think that when there is a significant ideological shift at the Supreme Court, a small number of past holdings, about which the new majority feels strongly, may be vulnerable -- just as happened in Lawrence, Mapp, West Coast Hotel, and others. Indeed, anyone who pays any attention to the Court no doubt thinks that already. The game of screaming "irresponsible" when one's favored cases are overruled, but not otherwise, is a cheap rhetorical trick and no more.

(To be fair, much the same could be said for Justice Scalia, whose dissent in Lawrence complained about the majority overruling Bowers. The short of it is that cases get overruled sometimes.).

I would criticize the claim in Friedrichs in a different way. The argument for the plaintiffs is that the mandatory union fee abridges their freedom of speech, because the union spends the money on (among other things) speech the plaintiffs may not agree with. Are there grounds for thinking that such a mandatory fee is inconsistent with the original meaning of the First Amendment (as incorporated by the Fourteenth)? I have not heard them. Nothing in their brief makes any specific arguments about the Amendments' original meaning as applied to union dues or anything generally analogous. (They rely mostly on compelled speech cases in different contexts, which themselves may or may not be consistent with original meaning). Perhaps it was well accepted in 1788 and 1868 that this sort of arrangement would be unconstitutional, though I doubt it.

But Greenhouse doesn't believe in original meaning so she can't make this argument. And without the anchor of original meaning, the Court follows its preferences. Trying to tie the current Court to prior decisions isn't going to work because no one (Greenhouse included, I am quite confident) thinks all prior cases should be inviolable. They only think ones whose outcomes they like are inviolable. And that's what the Justices think too.

By significantly diminishing the role intentions play in communication, in Imagination and Convention (2015) Lepore and Stone attempt to overthrow the Gricean paradigm which prevails in the philosophy of language. The approach they propose is attractive to theorists of legal interpretations for many reasons. Primary among these is that the more general dispute in the philosophy of language between Griceans and non-Griceans mirrors the dispute between intentionalists and non-intentionalists in legal interpretation. The ideas proposed in Imagination and Convention naturally support the non-intentionalist camp, which make them unique in the contemporary philosophy of language.

In this paper I argue that despite an almost universal acceptance for the Gricean paradigm in legal interpretation, a strong, externalist approach to language, one in which interpretation is based on conventions, not intentions, is more suitable to the nature of legal language. The latter functions in societies as a written, public discourse to which many individuals contribute. The number of contributions makes the identification of individual intentions impossible, which makes legal language badly suited to a Gricean, intention-based analysis. Thus, Lepore and Stone’s discourse-based, non-Gricean alternative provides a better tool for the theorist of legal interpretation to analyse legal language.

In what follows, I first present an overview of the disputes in legal interpretation that may be affected by Imagination and Convention. In the second section, I analyze several of Lepore and Stone’s theses and apply them to issues in legal interpretation, paying particular attention to their concept of “direct intentionalism”. In the last section, I outline some proposals for finishing the anti-Gricean revolution, which involves Ruth Millikan’s idea of conventions as lineages.

I had this thought: Most people have seen the Court's adding of a new question on the take care clause as implying a negative view of the administration's action (that is, that it is not only unauthorized by statute but unconstitutional). Suppose, though, that it's instead leaving an opening for the administration. That is, is it an invitation to the administration to argue (in the alternative) that even if the action is unauthorized by statute it is constitutional under the take care clause?

01/25/2016

Here are a couple of additional interesting reader comments on the Ted Cruz/Natural Born Citizen controversy:

From Victor Metallo:

Both Professors Larry Tribe and Thomas Lee are playing a game of “gotcha” with Ted Cruz when it comes to defining “natural born citizen” under the Constitution. Yet, neither are very convincing in their arguments that, based on this issue, conservatives should abandon the theory of originalism and convert to a liberal way of thinking about the Constitution. Originalism concerns the legal philosophy that one should read law based on the meaning of the words adopted at the time the law was written. Both professors are using this situation to disparage originalism, which Cruz supports. Tribe and Lee insist that a plain reading of the Constitution would not include Cruz, and therefore, his own conservative philosophy fails him. The only way they say he can run for office is if a liberal judge is kind and sensitive enough to rewrite the law for him.

Article II, Section I, Clause 5 (the Presidential Eligibility Clause), states that: “No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President[.]” From reading the plain language, there is a distinction, I believe, the Founders were making by using the disjunctive, “or.”

The Founders believed a president ought to be someone who has sole allegiance to this country, and one way of assuring that is to require a person be “natural born,” or born on the land to a legal father. If a person is born on the land, there is no question that the person is a citizen of the United States alone, because no other country could lay claim to the birth (as in the case of someone being born of American parents in Spain or Italy).

But then there is the presence of the disjunctive “or” in Article II, Section I, Clause 5: “No person except a natural born Citizen, or a Citizen of the United States . . .” Many who argue that only natural born citizens can be President leave the second part out of their reading, probably because the next phrase, “at the time of the Adoption of this Constitution,” appears only to include the Founders and people on the land at time the Constitution was signed. Yet, one can argue that if the Founders, who were British subjects, only wanted themselves to be an exception to the rule that only “natural born” citizens could run for President, then the text should have been more restrictive to reflect that desire. For example, the Founders could have said a person has to be natural born “or a Citizen of the United States, existing at the time of the Adoption of this Constitution.” That would leave out any naturalized citizens that came afterward. It appears, however, the Founders left the door open for persons (including themselves) to run for office, who are citizens through some means other than being born on the land; and, the power to decide who is a citizen other than a natural born citizen was given to the Congress. Therefore, a plausible reading of the clause along with Article I, Section 8, Clause 4, could mean that both natural born citizens, as understood at the time the Constitution was adopted, would include those born on the land to a father who was a citizen and any other type of citizen that Congress may define at later date. Congress cannot, however, decide who a natural born citizen is because at the time of the adoption of the Constitution, it was understood that a person was a natural born citizen through the citizenship of the father. Changing the original understanding of “natural born” would require a constitutional amendment. But that does not stop Congress from creating another category of citizen by statute.

Under Article I, Section 8, Clause 4, “The Congress shall have Power To . . . establish an uniform Rule of Naturalization. . . .” Congress has established by subsequent statutes those who are citizens in addition to natural born citizens. Again, at the time, the Founders understood that to be a citizen meant loyalty to the country and citizenship was granted to a child through the citizenship of the father (patrilineal descent). Yet, because the power is vested in the Congress to decide who a citizen is other than natural born, Congress can by statute grant citizenship through the mother as well. Those persons should be able to run for President, because it is hard to accept that the Founders, who were not natural born citizens were able to run for office, yet later generations who were similarly situated could not. And if one reads the Equal Protection Clause of the Fourteenth Amendment along with the Presidential Eligibility Clause, one cannot escape the fact that equal protection of the laws could be denied to future naturalized citizens to run for office, since the Founders did not make the Office of the President exclusive to natural born citizens (they carved out an exception for themselves).

It is true that the courts have not weighed-in on the Presidential Eligibility Clause, leaving the door open to challenge. This is the “cloud” to which Donald Trump refers. But the charge that somehow originalism has failed conservatives on this issue is wrong. The clause read in total keeps with the originalist philosophy, and thus, is also in harmony with the Fourteenth Amendment.

And from Richard Heller:

I think the Constitutional phrasing (Art. II) refers to a “natural born citizen” using the citizenship determination standard in existence at the time the Constitution was adopted. At the time of adoption, a candidate for president had to have been “born” in the U.S. This makes Senator Cruz ineligible for the office. The Act of March 26, 1790 (subsequently repealed) refers to the “children of citizens of the United States.” The language suggests that under this Act, derivative citizenship required that both parents have been U.S. citizens at the time of their child’s foreign birth.

My interpretation would eliminate naturalized citizens and derivative citizens from the office of president. The FourteenthAmendment would not change this result.

As noted previously, while we don't have a comments function (mainly due to the difficulties of moderating), I am always happy to get comments and to post them (sometimes subject to a little editing) if the commentators want me to.

Also I think this is a great post on originalism and the eligibility clause from Joseph Fishkin at Balkinization (though naturally I don't agree with it in full).

[In Puerto Rico v. Sanchez Valle] ... the Court heard oral argument on the question whether Puerto Rico is a “state” for purposes of the Double Jeopardy Clause.... You can be convicted for the same offense under state and federal law, because those laws come from different sovereigns. But is that true of Puerto Rico—or is the ultimate authority of its laws the U.S. Congress?

Obviously, Puerto Rico’s counsel (Chris Landau) conceded, the place isn’t a state. But it’s enough like a state to be treated like one, for purposes at hand. He didn‘t get very far with that argument, chiefly because the constitutional counterargument is so obvious: Something is either a state, or it isn’t. If it isn’t (but still belongs to the United States), it must be a territory. Putting aside the District of Columbia and the Indian nations, both specifically mentioned in the Constitution, “state” and “territory” are mutually exclusive—and they exhaust the universe. Congress can make all “needful regulations” with respect to territories and grant them a great deal of autonomy. Congress can make territories into states, or grant them independence. It can even tell the UN, as it has, that Puerto Rico isn’t a colony but kinda, sorta self-governing. (Justice Breyer made a big point of that.) None of those powers, however, can possibly encompass the power to make these places into constitutional mutts.

First, congratulations to my former co-clerk Chris Landau for another Court argument. Second, I'm not sure I'm convinced by the bright line Professor Greve is trying to draw. Congress' power over territories is plenary, so why can't Congress create a status of self-governing territory that is effectively sovereign? (Of course Congress could withdraw that status -- in a way it cannot withdraw a state's status -- but so long as the status persists, why doesn't it hold for double jeopardy purposes?). The bright line is appealing, because then we don't have to have the same argument about other territorial units whose self-governing status may not be so clear as Puerto Rico's. I can see why rule-of-law-oriented origianlists (which is most of them) would like that result. But originalism does not always produce bright lines, much as we would like it to. Perhaps this is an issue the Constitution leaves Congress to decide, meaning that when Congress does not speak clearly the rule is uncertain.

Incidentally, my impression is that the conventional understanding of double jeopardy (that is does not apply to successive federal and state prosecutions) is not as solidly grounded in original meaning as one might suppose. Something for Justice Thomas to think about?

With respect to so-called unincorporated territories like Puerto Rico—territories that might never become states—Congress’s plenary power to govern federal territories gives it ultimate authority. In that sense, territorial government authority is delegated from Congress, and Congress in principle can take back the delegation, just as it can do with respect to delegations to ordinary federal agencies. But exceptionally compelling normative and historical concerns support enabling unincorporated territories to govern themselves. Accordingly, congressional plenary power has been understood to enable unusually open-ended forms of delegation—delegations that enable autonomous self-governance.

It should follow logically that Puerto Rico qualifies as a double-jeopardy “separate sovereign,” no less than a state.

How should international treaties be interpreted over time? This book offers fresh insights on this age-old question. The Vienna Convention on the Law of Treaties (VCLT) sets out the rules for interpretation, stipulating that treaties should be interpreted inter alia according to the 'ordinary meaning' of the text. Evolutive interpretation has been considered since the times of Gentili and Grotius, but this is the first book to systematically address what evolutive interpretation looks like in reality. It sets out to address how and under what circumstances it can be said that the interpretation of a treaty evolves, and under what circumstances it remains static. With the VCLT as its point of departure, this study develops a functional reconstruction of the rules of treaty interpretation, and explores and analyses how the International Court of Justice and the European Court of Human Rights have approached the issue.

This is a concise guide to source materials relevant to late 18th-century and early 19th-century constitutional history in the United States, often with accompanying reflections about using these sources in historical and legal scholarship. The guide aims to be useful to those who are just entering the field as well as to more established historians and lawyers who want to keep up with newly available sources. Further suggestions are welcome.